IS IT OKAY TO BE A COPYCAT ON THE INTERNET?

by Troutman Sanders LLP

Posted: November 4, 2010

How we use and disseminate information, thoughts, and ideas has changed dramatically over the past 5-10 years. Traditional mediums – newspapers, books, magazines, encyclopedias, the nightly news – have, to a large extent, given way to the Internet – blogs, YouTube, Facebook, Twitter, news websites – as society’s source for information and its preferred medium for the expression of thoughts and ideas. Indeed, the Internet ubiquity increases daily – users can access it from almost anywhere in the world with a mobile device or computer and a network connection. Compared with traditional mediums, information on the Internet is also more easily published, distributed, updated, modified, and shared. Content on one webpage can be hyperlinked or cut and copied to another webpage, and then another, in an instant, which makes it difficult to keep track of who actually owns the content we view and use.

Given these realities of the Internet, many people naively assume that just about everything on the web is free, unprotected, and theirs to use without limitation. Is this good or bad? Does the Internet encourage innovation and sharing, or does it stifle creativity? On one hand, the Internet encourages the free flow of thoughts and ideas. Take Wikipedia, for example, which aggregates the collective knowledge of users from around the world, without regard to who owns what. But, on the other hand, the Internet is an emerging commercial marketplace, where ownership and revenues really do matter; and the stakes are high because of the potential revenue associated with the relative ease of distributing content to millions of users. So, how do we balance free use with protection of ownership? It’s not easy. Particularly with regard to copyrights, the Internet poses many challenges.

Despite Congress’ attempt to keep pace with the Internet by enacting the Digital Millennium Copyright Act (“DMCA”), which sought to extend federal copyright protection to Internet content, there is still much confusion over how to treat content on the Internet. Traditional copyright laws are not well-tailored to Internet content, leaving the courts to interpret and apply the law as best they can, and sometimes inconsistently. For now, in light of the uncertainty over how copyright law will evolve with the Internet, the best practice – whether you’re using someone else’s content on the Internet or you’re the owner of content – is to stay aware. Stay aware of the content you use; stay aware of your content and how it’s being used; and stay aware of the law as it evolves. For all you know, you may be pirating someone else’s copyright-protected work or your copyright-protected work may be being pirated right under your nose.

Those who blindly copy, or allow the copying of, content on the Internet could unknowingly be risking a copyright infringement lawsuit. The Copyright Act allows for statutory damages of $750-30,000 for each act of infringement, with court discretion to raise or lower that amount (down to $200 or up to $150,000) depending on the circumstances. And because digital media on the Internet is so easily uploaded and frequently shared, the potential for a massive statutory damages award exists. Not long ago, Viacom International, the multimedia conglomerate, which owns countless copyrights, sued YouTube, alleging infringement of at least 150,000 video clips. The case settled, but statutory damages could have been, at a minimum, $112.5 million (i.e., $750 x 150,000), even before taking into account multiple acts of infringement of the same video clip.

What’s scary, given these staggering damages amounts, is one can be sued even if they didn’t actually and knowingly copy someone else’s protected work. For instance, you can be sued (1) if you knew or should you have known that copyright-protected work was copied and (2) you contributed to or induced the copying (which can be as simple as advertising or promoting the infringing work). The Supreme Court has held that distributing a product with infringing and non-infringing uses may nevertheless still constitute infringement if the promotion of the product and its ultimate use is infringing.

You can also be liable for infringement if you have a financial interest in the infringing activity and the right or ability to control it. Consider a video sharing website like YouTube, for example. Thousands of users post video content on video sharing sites each day. Most of these sites have a financial interest in their users doing so – it’s what attracts users to their site and thus attracts advertising revenue. Moreover, some of these websites maintain the ability to control what content is posted. So, when a user knowingly and without authorization posts a copyrighted video on a videosharing site, the site owner could be potentially liable for that act.

Fortunately for YouTube and others like it, Congress has made life easier with safe harbors from copyright infringement liability under the DMCA. But, to be eligible for safe harbor protection under the DMCA, you must adopt and reasonably implement, and inform your users of, a policy that meets the guidelines of the DMCA for preventing repeated acts of infringement. If you do that, you can extricate yourself from a fight between the copyright owner and alleged infringer.

However, not everyone is entitled to the safe harbor protections of the DMCA; not every website qualifies. In that case, traditional copyright laws will dictate infringement liability.

Obviously, the best way to avoid liability is to obtain permission from the copyright owner to use its copyrighted work, which isn’t always possible or practical. Fair use of a copyrighted work, though, is a defense to infringement. Whether use of protected work constitutes “fair use,” however, is highly fact specific. It depends on the nature of the use, the nature of copyrighted work, the amount of work copied, and how the use affects the market for the copyrighted work.

In sum, when dealing with the Internet, being generally aware of copyright law, using the protections offered by the DMCA, and keeping track of the sources of the content you post on your website puts you ahead of the curve.